Lexploria

Information Note on the Court’s case-law 37

December 2001

Metropolitan Church of Bessarabia and Others v. Moldova - 45701/99

Judgment 13.12.2001 [Section I]

Article 9

Article 9-1

Freedom of religion

Refusal of authorities to grant official recognition to a Church: violation

Facts : The first applicant, the Metropolitan Church of Bessarabia, is an Orthodox church affiliated to the patriarchate of Bucharest. The other applicants are founder members of the church, which was set up in September 1992. In October 1992, pursuant to the Religious Denominations’ Act (Law no. 979-XII of 24 March 1992), the applicant church applied for official recognition. No reply was fo rthcoming. In February 1993 the Government recognised another church, affiliated to the patriarchate of Moscow, the Metropolitan Church of Moldova. In March 1997 the Court of Appeal directed the Government to recognise the applicant’s church, but in Decemb er of the same year the Supreme Court set aside that judgment on the grounds that the application was out of time and that such recognition would constitute interference in the affairs of the Metropolitan Church of Moldova. The Supreme Court noted that it was possible for adherence of the Metropolitan Church of Bessarabia to manifest their religion within the Metropolitan Church of Moldova. The applicant’s church alleged in particular that this refusal of official recognition had exposed its members to acts of violence and intimidation without any intervention by the authorities. It further complained that the refusal of recognition deprived it of legal personality and therefore of locus standi .

Law : Article 9 – The Government’s refusal to recognise the app licant church constituted interference with the right of the latter and the other applicants to freedom of religion. Without giving a categorical answer to the question whether the provisions of the Religious Denominations Act satisfied the requirements of foreseeability and precision, the Court was prepared to accept that the interference was “prescribed by law”. States were entitled to verify whether a movement or association carried on, ostensibly in pursuit of religious aims, activities which were preju dicial to public order or public safety. In the present case, the interference pursued a legitimate aim, namely protection of public order and public safety. With regard to the Government’s argument relating to the defense of legality and constitutional pr inciples, the Moldovan Constitution guaranteed freedom of religion and laid down the principle of religious denominations’ autonomy vis-à-vis the State, and the Religious Denominations’ Act, of 1992 laid down a procedure for the recognition of religious de nominations. The State’s duty of neutrality and impartiality was incompatible with any power on the State’s part to assess the legitimacy of religious beliefs, and required the State to ensure that conflicting groups tolerated each other. In the present ca se, by taking the view that the applicant church was not a new denomination and by making its recognition depend on the will of an ecclesiastical authority that had been recognised – the Metropolitan Church of Moldova – the Government had failed to dischar ge their duty of neutrality and impartiality. Consequently, their argument that refusing recognition was necessary in order to uphold Moldovan law and the Moldovan Constitution had to be rejected. As to the alleged danger for Moldovan territorial integrity , the applicant church, in its articles of association, defined itself as a local autonomous church, operating within Moldovan territory in accordance with the laws of that State, and whose name was a historical one. There was nothing in the file which war ranted the conclusion that the applicant church carried on activities other than those stated in its articles of association. Moreover, in the absence of any evidence, the Court could not conclude that the applicant church was implicated in political activ ities aimed at bringing about the reunification of Moldova with Romania. As for the possibility that the applicant church, was recognised, might constitute a danger to national security and territorial integrity, this was a mere hypothesis which, in the ab sence of corroboration, could not justify a refusal to recognise it. As regards the need to protect social peace and understanding among believers, relied on by the Government, there were certain points of disagreement between the applicants and the Govern ment about what had taken place during incidents that had occurred at gatherings of the adherents and clergy of the applicant church. Without expressing an opinion on exactly what had taken place during the events concerned, it appeared that the refusal to recognise the applicant church had played some part. With regard to the proportionality of the interference in relation to the aims pursued, under the above-mentioned 1992 Act only religions recognised by a government decision could be practiced. Without such recognition, the applicant church could neither organise itself not operate. Lacking legal personality, it could not bring legal proceedings to protect its assets, which were indispensable for worship, while its members could not meet to carry on reli gious activities without contravening the legislation on religious denominations. As regards the tolerance allegedly shown by the Government towards the applicant church and its members, this could not be regarded as a substitute for recognition, since rec ognition alone was capable of conferring rights on those concerned. Moreover, on occasion the applicants had not been able to defend themselves against acts of intimidation, since the authorities had fallen back on the excuse that only legal activities wer e entitled to legal protection. Lastly, when the authorities had recognised other liturgical associations they had not applied the criteria which they had used in order to refuse to recognise the applicant church, and no justification had been put forward by the Moldovan Government for this difference in treatment. In conclusion, the refusal to recognise the applicant church had such consequences for the applicants’ freedom of religion that it could not be regarded as proportionate to the legitimate aim pur sued or, accordingly, as necessary in a democratic society.

Conclusion : violation (unanimously).

Article 13 – In its judgment of 9 December 1997 the Supreme Court of Justice had not replied to the applicants’ main complaints, namely their wish to join toge ther and manifest their religion collectively within a church distinct from the Metropolitan Church of Moldova and to have the right of access to a court to defend their rights and protect their assets, given that only denominations recognised by the State enjoyed legal protection. Consequently, not being recognised by the State, the Metropolitan Church of Bessarabia had no rights it could assert in the Supreme Court of Justice. Accordingly, the appeal to the Supreme Court of Justice based on Article 235 of the Code of Civil Procedure had not been effective. Moreover, although the Religious Denominations Act of 1992 made the activity of a religious denomination conditional upon government’s recognition and the obligation to comply with the laws of the Republ ic, it did not contain a specific provision governing the recognition procedure and making remedies available in the event of a dispute. Consequently, the applicants had been unable to obtain redress from a national authority in respect of their complaint relating to their right to the freedom of religion.

Conclusion : violation (unanimously).

Article 41: EUR 20,000 for non-pecuniary damage and EUR 7,025 for costs and expenses.

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